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Vice - Horse Racing Appeal Panel (HRAP). Toscani and Holland v. AGCO
In Toscani and Holland v. AGCO (Div Court, 2024) the Divisional Court dismissed a JR of "the decision of the Horse Racing Appeal Panel (“HRAP”) which dismissed their appeal from rulings by the Registrar, Alcohol and Gaming Commission of Ontario (“Registrar”) that they had violated the Rules of Standardbred Racing (“RSR”) established under the Horse Racing Licence Act, 2015".
The court considers an ultra vires Rules (not Regulations) argument, here wrt Rules under the Horse Racing Licence Act, 2015:3. Is Rule 22.38 ultra vires the Registrar’s powers under the Act?
[57] On the question of whether a rule or regulation is ultra vires its enabling legislation, this court has confirmed that the leading authority is from Katz Group Canada v. Ontario (Health and Long Term Care) 2013 SCC 64, [2013] 3 S.C.R. 810. As Sachs, J. wrote for this court in Friends of Simcoe Forest v. Minister of Municipal Affairs and Housing, 2021 ONSC 3813, at par. 27: [sic]
[58] In Hudson’s Bay at para. 37, the Divisional Court summarized the principles that apply when determining the vires of a regulation:a. Judicial review of a regulation is usually restricted to two questions:
(1) Was a condition precedent not met before the regulation was enacted; (2) Is the regulation inconsistent with the purpose of the enabling statute? To this principle, in accordance with para. 24 of Katz, I would add the question: (3) Was the regulation inconsistent with the scope of the statutory mandate?
b. Regulations are presumed to be valid. This means that the burden falls on the party challenging the validity of the regulation and that the court is to favour an interpretation that “reconciles the regulation with its enabling statute so that, where possible, the regulation is construed in a manner which renders it intra vires” (Katz at para. 25).
c. Both the challenged regulation and the enabling statute should be interpreted using a broad and purposive approach.
d. “Courts are not to assess the policy merits of a regulation to decide whether it is ‘necessary, wise or effective in practice’” (Hudson’s Bay at para. 37, citing Katz at para. 27).
e. The motives for enacting a regulation are irrelevant.
f. “Under inclusiveness is not a valid ground for challenging a regulation as ultra vires” (Hudson’s Bay at para. 37, relying on Katz at para. 40). [59] Regulations must be “‘irrelevant’, ‘extraneous’ or completely inconsistent with the statutory purpose to be found ultra vires on the basis of inconsistency with the statutory purpose … it would take an egregious case to warrant such an action” (Katz at para. 28). The Applicants submit that the TCO2 testing regime provided for under Rule 22.38 of the RSR is arbitrary, unfair and unreasonable; asserting that TCO2 is an indirect measure of whether a horse has been administered an alkalizing substance to improve its race performance (a practice described as “milkshaking” “tubing” or “drenching’ a horse). They called evidence at the hearing describing other factors which can cause a high TCO2 value, including measures taken to rehydrate a horse.
[60] The Applicants rely on evidence from Dr. Lindinger who opined that TCO2 thresholds are based on imperfect statistical models, rest on imperfect assumptions and are inherently unreliable. They submitted to the Board that the test at issue is outdated and is not efficient in determining whether a horse has been given an excessive alkalizing substance.
[61] The HRAP properly found that it was bound to apply the RSR, including Rule 22.38, to the case before it, and that it did not have jurisdiction to declare the rule ultra vires the Registrar.
[62] The issue is brought to this court as one of originating jurisdiction rather than review of a decision of the HRAP. It is the Registrar, and not the HRAP who has broad powers to “govern, direct, control and regulate” standardbred horse racing in Ontario. The Registrar is appointed pursuant to the Alcohol and Gaming Commission of Ontario Act, 2019, S.O. 2019, Sched. 1. Under the Horse Racing Licence Act, 2015, SO 2015, c 38, Sch 9, s.5, the Commission, through the Registrar, is granted rule-making powers. Rule 22.38 is an exercise of those rule making powers.
[63] Ontario has been participating in the Canadian Pari-Mutuel Agency (“CPMA”) TCO2 threshold and testing program since 1999. Other jurisdictions apply TCO2 thresholds to horse racing. The Beckman instrument is approved by Rule 22.28.02 and the RFI is a Registrar-approved lab. In 2021, shortly before the race in question, the Registrar reconsidered Rule 22.38 and made it stricter by decreasing the allowable amount of TCO2 that can be found in a horse’s blood. The Registrar did so to align Ontario’s standards with international racing standards.
[64] The stated objectives of Rule 22.38 and TCO2 thresholds are consistent with the general purpose of the Act, which is to “uphold the integrity of horse racing.” Thus, it falls within the Registrar’s mandate to exercise its delegated rule making powers to act in the best interests of horse racing.
[65] Based on the HRAP’s findings on the expert evidence, and the plain wording of the Act and the Rule, there is no basis on which I would find that Rule 22.38 is ‘irrelevant’, ‘extraneous’ or inconsistent with the statutory purpose in the Act.
[66] It is not the court’s role to legislate. The evidence at the hearing revealed that neither the HRAP, the CPMA, other provincial regulators or the international racing regulators share the concerns raised by the Applicants regarding the testing for TCO2 and restrictions on those levels. The rule recognizes that there may be horses that naturally have higher concentrations of TCO2 than permitted by the threshold. It makes express provision for such horses by way of the quarantine provision.
[67] I find that Rule 22.38 is not ultra vires the Registrar’s powers under the Act. . Toscani and Holland v. AGCO
In Toscani and Holland v. AGCO (Div Court, 2024) the Divisional Court dismissed a JR of "the decision of the Horse Racing Appeal Panel (“HRAP”) which dismissed their appeal from rulings by the Registrar, Alcohol and Gaming Commission of Ontario (“Registrar”) that they had violated the Rules of Standardbred Racing (“RSR”) established under the Horse Racing Licence Act, 2015".
These quotes illustrate procedures in this little-litigated area of 'horse law':[3] In accordance with Rule 22.38 of the RSR, the Registrar required that blood samples be taken from GF and tested for total carbon dioxide, or “TCO2” to determine whether they were within the permissible thresholds set by the Registrar.
[4] The test results showed that GF’s blood levels of TCO2 were above the permitted threshold. This is generally a sign that the horse has been administered an alkalizing substance, which can enhance race day performance. There are other reasons why a horse may have high TCO2 levels. If an owner wants to claim that his or her horse has high TCO2 levels for reasons other than the administration of alkalizing substances, pursuant to Rule 22.38.07, the owner may have the horse quarantined and re-tested over a few days. If a quarantined horse’s TCO2 levels stay high after the effects of any alkalizing substances should have subsided, then the RSR precludes a finding that the owner and/or the trainer of the horse violated the rules.
[5] The Applicants did not request that GF be held in quarantine nor did they re-test GF following the TCO2 testing done at the time of the August 7, 2021 race.
[6] The Registrar imposed penalties for the violation of Rule 22.38 as follows:a. Mr. Toscani as Horse Owner – GF was ineligible from racing for 30 days;
b. Mr. Holland as Trainer – Suspension of Mr. Holland for 90 days, a monetary penalty of $5,000, designation of “unplaced” for GF in the race, redistribution of the purse money and two-year probationary terms on Mr. Holland’s license, until February 15, 2024. [7] The Applicants appealed to the HRAP and participated in a six-day hearing in October 2022.
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